ADDENDUM “C” TO MASTER SERVICES AGREEMENT
Certain
confidential information contained in this document, marked by brackets [**],
has been omitted and filed separately with the Securities and Exchange
Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.
Exhibit
10.86
ADDENDUM
“C”
TO MASTER SERVICES
AGREEMENT
This
agreement between Ness
USA, Inc., located at
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (“SUPPLIER”) and Chordiant Software, Inc.
located at ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (“CHORDIANT”) is an
Addendum dated this 1st day of
January, 2009, (the “Addendum”) to the Master Services Agreement executed on
December 15, 2003 (the “Agreement”) between SUPPLIER and CHORDIANT.
WHEREAS
the parties hereto wish to modify certain terms of the Agreement and to
memorialize additional terms, as more fully set forth below.
Accordingly,
in consideration of the promises and covenants set forth below, the parties
agree as follows, intending to be legally bound:
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1.
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The
term of this Agreement shall be extended through and including December
31, 2011.
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2.
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CHORDIANT
shall receive a [**] discount on the current EDC billing rate of [**] per
billable person per month for Calendar Quarter Four (4) in the year
2008.
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3.
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For
calendar year 2009, CHORDIANT shall receive a discount on the current EDC
billing rate of [**] per billable resource per month in the event that the
billable headcount for a given month is in accordance with the discount
structure. The discount structure shall be as
follows:
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Discount Structure per
billable headcount
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·
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In
the event that billable headcount shall equal or exceed [**] resources,
CHORDIANT shall receive a [**]
discount.
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·
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In
the event that billable headcount shall be between [**] and [**]
resources, CHORDIANT shall receive a [**]
discount.
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·
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In
the event that billable headcount shall be between [**] and [**]
resources, CHORDIANT shall receive a [**]
discount.
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·
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In
the event that billable headcount shall be below [**] resources, CHORDIANT
shall not receive a discount and the full [**] rate shall
apply.
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4.
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In
addition to the remedies for termination for convenience provided in
Section 24.1 of the Agreement titled Termination for Convenience and in
addition to the fees for Transfer outlined in Section 30 and Exhibit 22 of
the Agreement, in the event that CHORDIANT terminates for convenience
through and including December 31st,
2009 or in the event CHORDIANT executes the Transfer Option in accordance
with Section 30 through and including December 31st,
2009, SUPPLIER shall receive a termination penalty (the “Termination for
Convenience penalty”) from CHORDIANT. The Termination for
Convenience penalty shall be equal to the cumulative difference between
the actual amount paid for each of the billable resources on-board during
calendar year 2009 up to the date of termination and the amount CHORDIANT
would have paid under the [**] per billable resource per month for each
such billable resource up to a maximum amount of $450,000. The Termination
for Convenience penalty shall not exceed
$450,000.
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5.
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Such
Termination for Convenience penalty described in Section 4 of this
Addendum shall not be applicable to CHORDIANT after December 31st,
2009. If CHORDIANT terminates for convenience after December
31st,
2009, CHORDIANT shall only pay the Termination Fee, if any, as determined
in accordance with Attachment 4-C, Termination Fee, of Exhibit 4 in
accordance with Section 24.1 of the Agreement titled Termination for
Convenience. If CHORDIANT exercises the Transfer Option in accordance with
Section 30 after December 31st,
2009, SUPPLIER shall not receive any termination penalty as specified in
Section 4 above.
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6.
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Further,
the Termination for Convenience penalty described in Section 4 of this
Addendum shall not apply at any time in the event that CHORDIANT
terminates the Agreement for any other reason apart for termination for
convenience in accordance with Section
24.1.
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7.
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The
then-current rate per billable resource per month for the months of
October 2009 and October 2010, respectively, as determined in accordance
with this Addendum, shall be used as the cost basis for the billing rate
negotiations for the calendar years 2010 and 2011,
respectively. CHORDIANT and SUPPLIER shall by written mutual
agreement agree on a billing rate for calendar years 2010 and 2011 in
accordance with Section 17.2 titled Adjustments; provided that if the
parties mutually agree in good faith, each in their sole discretion, that
the economic situation in any given calendar year so warrants, then they
may agree to a rate increase not to exceed [**] total for the next
calendar year. The parties agree that all rate increase
discussion and agreements must be made no later than November 15, 2009 and
November 15, 2010 respectively, for the calendar years 2010 and 2011,
respectively. For the sake of clarification, the discount
structure set forth in Paragraph 3 above shall not apply to the billing
rates for calendar years 2010 and
2011.
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8.
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The
buffer resource and four (4) week training period shall remain in
accordance with Section 11.4(e) of the Agreement titled Staff Training and
Section 11.6 of the Agreement titled Supplier Buffer
Resources. At such times as staffing vacancies occur or new
positions are created, CHORDIANT agrees to use a good faith effort to
utilize existing and trained buffer resources whom CHORDIANT deems
qualified to fill such positions. In such cases, no free period will apply
where the buffer resource has spent a minimum of 4 weeks in
training.
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9.
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With
the exception of the foregoing changes, the terms and conditions of the
Agreement shall remain in full force and
effort.
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IN
WITNESS WHEREOF, the parties have executed this Addendum, intending to be
legally bound, as of the day and year written above.
Accepted
by: Accepted
by:
/s/ ▇▇▇▇▇
▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Name: ▇▇▇▇▇
▇▇▇▇▇ Name: ▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Title: General
Counsel
Title:
Vice President & Chief Financial Officer
Date: 1/12/09
Date: 1/16/09
For:
Ness USA,
Inc. For:
Chordiant Software,
Inc.